Music Sharer Asks for Reduced Fine, Retrial

The student ordered to pay US$675,000 for sharing music online has asked for a new trial and for a reduction in the amount of damages he must pay.

Joel Tenenbaum, a PhD student at Boston University, was ordered in the middle of last year to pay the damages for sharing 30 songs online. His lawyer, Harvard professor Charles Nesson, argued that the judge should reconsider her decision based on so-called fair use.

In her ruling, Judge Nancy Gertner of the U.S. District Court for the District of Massachusetts said that people who used filed sharing networks before digital music could be legally purchased but who later began paying for such music might be in the clear. She set the introduction of the iTunes music store in 2003 as the end of the period before which people couldn't legally buy music online.

But Nesson argued that since for a time only Mac users could access the iTunes store, which only contained 200,000 songs, a later date should be used. In addition, for years those songs were all encumbered by digital rights management software, he noted.

Nesson suggested that the judge set a date some time after 2007, which was when Apple CEO Steve Jobs wrote an open letter urging the music industry to offer digital music without DRM and eventually many did. Tenenbaum was caught sharing music in 2004.

If the judge refuses to reconsider that issue, Nesson is asking her to reduce the damages that Tenenbaum must pay. He is calling upon a precedent set by a Supreme Court case that ruled damages are invalid if they are oppressive and disproportionate to the offense.

"Who could possibly think that a massive and entirely arbitrary verdict of $675,000 for sharing songs valued at (at most) $30 comports with any of our traditional notions of fairness and Due Process?" reads a post on Tenenbaum's blog. The $30 figure is based on the typical $0.99 price tag for most digital songs but does not account for the value of those songs that Tenenbaum subsequently shared with other people online.

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